Origin of Writ
In common law, Writ is a formal written
order issued by a body with administrative or judicial jurisdiction. In modern
times, this body is generally a Court. In olden days the writ was simply a
written order made by the English Monarch to a specified person to undertake a
specified action. Eg: King order the military chief to arrange the soldiers for
battle at a certain place and time. In Early times UK, Canada and Australia had
a practice of¬† Writ of Election
. Writ of Election means a written order issued
by Governor General for House of Representatives, State Governors for State
Elections (on behalf of King) to local officials to hold general elections.
Five Type of Writs:
There are five types of writs in the
Indian Constitution stated in Article 32 for Supreme Court and Article 226for
High Court. They are:
- Habeas Corpus
- Quo Warranto
1. Habeas Corpus Great And Effective Writ:
Habeas Corpus was 1storiginated in 1215, in 39th clause of Magna Carta, signed
by King John. Habeas Corpus derived from Latin term which means ú that you have
the bodyĚ. It is used to secure a person who has been detained unlawfully or
The detention is unlawful if:
- It is not according to law.
- Not strictly following the procedure established by law.
- The invalid law is followed (Because the law infringes Fundamental Law).
- It exceeds the law enacted by legislature.
Article 20 says Protection in respect of conviction for offences
Article 21 says Protection of Life and Personal Liberty
Article 22 says Protection against arrest and detention in certain cases
Court will check the detention with help of these articles, if the detention
violates then it is unlawful or illegal detention. Any one can file this
petition on behalf of the detainee.
In Sheela Barse vs State of
the writ petition was filed by the Sheela Barse a journalist.
She interviewed 15 women prisoners in police lockup in the city of Bombay in
May.11.1982. She finds 2 women were assaulted there, so she filed the petition.
The court ordered and directed Dr (Miss) A.R.Desai, Director of college of Social
Work - to investigate it. Finally it was proved and the officials were punished
and certain safety measures were taken to the safeguard of the women prisoners.
Limitation for Habeas Corpus:
Though a writ of right,
it is not a writ of course means it provides only procedural remedy
(Guarantees against any detention that is forbidden by law), But it does not
provide any other remedy (does not protect any other rights such as fair trial
2. Quo Warranto Authoritative Writ:
Warranto is originated in the Latin in the medieval period, which means by what authority. It is issued to the person who holds the public office and on what
authority it is entitled to him. The concerned person is responsible to the
court to explain his authority on which he holds the authority. The person who
files this writ is need not to be personally suffered. This writ is filed to
test the validity of a election of a person in a university syndicate, Mayor in
municipal corporation, Nomination of members to a Legislative Council by
Governor, appointment of Chief Minister, Chief Justice, Advocate and Attorney
General, University Teachers etc.
In the case Purushottam Lal vs
State of Rajasthan
quo warranto was filed against the CM of Rajasthan stating
that CM was not elected validly to the house. The court rejects the petition
stating that if the CM holds office without authority, then it is breach of
constitutional provision. The office of Chief Minister is created by
constitution, so member of assembly is not a purpose of office. Raising the
questions on the Election of Chief Minister in this writ is not a proper form it
must be raised through an election petition.
If a person who had no
qualification was appointed as CM by the Governor under the Article 164 of the
Constitution which is unconstitutional, the governor cannot be challenged.
Because he had the discretionary power under Article 361 and the appointment
will be deserted by the High Court.
In the case Y.S.Raja Sekar
Reddy vs Nara Chandra Babu Naidu
a quo warranto cannot be issued for dismissing
the Chief Minister of a state on the reason of non-performance of his
Conditions For Issue of Quo Warranto:
- The office must be a public one and it must be created by the
- It must be a substantive one.
- There must be a contravention in constitution in appointing the person
for that office.
3. Mandamus Writ of Command:
Mandamus is developed from Latin word which means
We command. It is an order from the Supreme or High Court to:
- Lower or Subordinate courts.
- Public Authority.
To perform the public or statutory duty. Mostly this writ of command will be
issued to any government, court, corporation or public authority fails to do
Limitations for Mandamus:Supreme Court cannot issue writs
- President or State Governors
- Chief Justice of High Courts
- Against any private individual
- Duties on voluntary interest
Mandamus cannot be issued against
- state government to appoint a commission for any enquiry in the state
- delegated legislative to make further rules in statutory provisions
- directing the government to make reservations (Article 16)
- the complete right of a private person
- to enforce the payment of money of a person in a civil liability.
In Tata Cellular vs UOI
case, the Supreme Court said that the court cannot
interfere in the governments freedom of contract, invitation of tenders and
refusal of tenders. The court can interfere if the governments decision was
unfair, illegal and unreasonableness.
4. Certiorari To Be Certified:
issued by a Superior Court to the inferior or subordinate courts, tribunal and
other public authorities to submit the record of a proceeding for review.
Generally the writ of certiorari was issued by the Supreme or High Court for
quashing the order passed by inferior courts or subordinate courts, tribunals or
other quasi judicial authorities.
Conditions For Issue of Writ of Certiorari:
- There must be a court, tribunal or an authorised person having a legal
right to act judicially.
- Such court, tribunal or officer must acted or passed an order without
jurisdiction or in excess of judicial authority.
- If the order was against the principle of Natural Justice.
- If the order contains an error of judgement.
- If it is against the constitution or contravention to the fundamental
5. Prohibition Stay Order:
The writ of prohibition is
issued by Supreme or High Court to an inferior court to forbid or to stop the
order passed by them. The writ of certiorari and prohibition are issued mostly
on similar grounds. The main difference between these two writs are:
- Certiorari issued to quash a decision after completion of proceedings.
- Prohibition issued before the completion of proceedings.
The writs are initiated to maintain the proper
functioning of the persons in the public authority and also for the proper
functioning of the government. It must be followed strictly and to ensure that
there is a proper function is maintained without any malfunctions in the
respective fields. Judiciary must play a major and strict role in